Facts and Myths of Compulsory Licensing

Tech Law Advisor points me to this post regarding compulsory licensing.  While Mr. Alexander Payne makes some good points, he’s mostly criticizing the myths, not the facts, of compulsory licensing. I bring this post up not to pick on this person in particular, but because these myths are pretty common.  To have a vigorous debate about compulsory licensing, we must first understand what it is and what it is not:

“Of course, making sure the right people get compensated in proportion means doing what the RIAA does now: policing file-sharing services.”

If by policing P2P services you mean monitoring individuals’ activities, not exactly.  The way you’d sample the P2P services would not require you to record how much any particular person had downloaded a song.  To use Professor Fisher’s metaphor, the monitoring would be like putting a person beside the highway and recording license plate numbers; you don’t know where the cars/files are going, you don’t know where they’re coming from, you just know that they’re going.  So, compulsory licensing does not require pervasive monitoring of people’s activities.

Now, if the criticism here is actually directed towards the difficulty of actually recording every use, I still don’t see a huge problem.  First, in general, we wouldn’t need to count every use. We just need a reasonable sample. Second, in many cases, we can get a completely accurate count.  In fact, we already require such counting.  Both terrestial and online broadcasters have to keep logs of what they play.  These logs get reported to various rights organizations (ASCAP, BMI, et al).  So, I’m not sure what the problem would be with requiring such tracking writ larger.  In some ways, online file transfers could be even easier to track because you could automate the logging.

“And, as is rarely discussed when people bring this issue up, how are independent musicians who have no RIAA representation remunerated?”

Good point, and Fred von Lohmann left this kind of ambiguous in his editorial. But, I’m not sure this is necessarily a problem. Again, take Professor Fisher’s plan.  Anyone can tag their works with a watermark.  That watermark can provide all the information necessary to remunerate that artist when his material is downloaded.  You don’t need a larger organization to help you out.

“What if the artists want people to be sharing their music for free?”

Then they won’t use a watermark.

Now, as I’ve noted here and others have discussed, there are potential dangers in using watermarks.  But, if the watermarks are secured properly and sampling is used to help control for potential abuses, those dangers could be mitigated.

“And, more important than all of the music world concerns, what about those Internet users who don’t ever touch file-sharing?”

That’s the second best point here.  This is it’s all the more reason to keep the taxes as low as possible.  At the same time, it’s important to realize that a lot of tax dollars already go into the current copyright regime.  You can’t look at something like Fisher’s plan as simply additional costs. Tax dollars already go into this issue – take the CARP proceedings, for instance. Furthermore, I don’t think taxing people who won’t use the service is necessarily a sufficient reason to reject compulsory licensing.  Yes, not absolutely everyone is going to acquire their digital media via the Internet. I suspect many will, but maybe not everyone.  But, to use the CARP again, not everyone listens to webcasting, yet tax dollars go to the CARP.  Now, we should investigate ways to keep the costs as low as possible for the CARP and investigate cheaper alternatives.  But, I don’t think the expense of the CARP alone is a good reason to not allow webcasters any sort of compulsory license. 

“It seems a task too technically and politically complex to regard as a good solution.”

This is the best point here.  Technically complex? Maybe. Politically complex?  Definitely.  We’re a long way off from seeing something like this on the table in Congress. 

But, that’s precisely why Fred, Professor Fisher, Neil Netanel, and others are getting the ball rolling.  It’s important to get this on the table, really explore the issues here. To do so, we have to start moving beyond the myths of compulsory licensing.

[Footnote: again, note that I’m using compulsory license to identify Fisher’s plan, which is not always the use of that term.  That is, while the CARP does create compulsory licensing, it’s of a different breed.  Now, that I look more closely, Fred actually is talking about mixing elements of both models. He’s talking about a taxation model, but also talking about requiring certain percentage payouts between artists and record companies.  I will try to address this terminology in greater detail soon.]